PARTIES
(1)[COMPANY LEGAL NAME] (Private) Limited, a company incorporated in Sri Lanka under the Companies Act, No. 7 of 2007 (Registration No. [PV ______]), having its registered office at [registered address], which owns and operates the website www.fochant.lk and the related applications and services under the brand “Fochant” (the “Company”, “we”, “us” or “our”); and
(2)The person, firm or company that registers as a Reseller in the “Smile with Fochant” programme and whose details appear in the registration and Account records (the “Reseller”, “you” or “your”).
BACKGROUND
(A)The Company operates the Platform and the “Smile with Fochant” programme under which approved resellers may buy Products and resell them to end customers.
(B)The Reseller wishes to participate in the Programme as an independent reseller on the terms of this Agreement.
THE PARTIES AGREE as follows:
1. DEFINITIONS AND INTERPRETATION
In this Agreement:
“Account” means the Reseller account registered by you on the Platform, including all dashboards, wallets, ledgers and sub-accounts linked to it.
“Affiliate” means, in relation to the Company, any holding company, subsidiary or sister company, and any entity controlled by or under common control with it.
“Agreement” means these Terms and Conditions, the Schedules, the Policies and any Special Commercial Terms agreed or published for you, each as updated from time to time in accordance with this Agreement.
“Applicable Law” means the Consumer Affairs Authority Act, No. 9 of 2003 and every direction issued under it (including Direction No. 91 published in Gazette Extraordinary No. 2332/15 of 17 May 2023 on e-commerce entities and platform operators); the Personal Data Protection Act, No. 9 of 2022 (as amended); the Electronic Transactions Act, No. 19 of 2006; the Computer Crimes Act, No. 24 of 2007; the Intellectual Property Act, No. 36 of 2003; the Inland Revenue Act, No. 24 of 2017; the Value Added Tax Act, No. 14 of 2002; the Prevention of Money Laundering Act, No. 5 of 2006; the Financial Transactions Reporting Act, No. 6 of 2006; the Banking Act, No. 30 of 1988 (as amended), to the extent applicable; the Customs Ordinance; and every other written law, regulation, order, gazette notification or binding regulatory direction in force in Sri Lanka from time to time.
“Authorised Channels” means the sales channels approved for you in Schedule A or in writing by the Company.
“Confidential Information” means all non-public information disclosed by or on behalf of the Company to you in any form, including pricing, margins, supplier and customer identities, sourcing terms, product costs, algorithms, software, dashboards, business plans and the terms of this Agreement.
“Customer” means any person who orders or purchases Products through, or as a result of activity on, the Platform or your sales channels.
“Fees” means all fees, commissions, charges, subscription amounts, deductions and costs payable by you to the Company under this Agreement, as set out in Schedule A or as published on the Platform from time to time.
“Force Majeure Event” has the meaning given in the clause headed ‘Force Majeure’.
“Intellectual Property Rights” means copyright, trade marks, service marks, trade names, domain names, social media handles, designs, database rights, rights in software and source code, trade secrets, know-how and all similar rights anywhere in the world, whether registered or not.
“PDPA” means the Personal Data Protection Act, No. 9 of 2022 (as amended). The terms “personal data”, “controller”, “processor”, “data subject”, “processing” and “personal data breach” have the meanings given in the PDPA.
“Platform” means the website www.fochant.lk and every sub-domain, mobile application, application programming interface, dashboard, tool, software and service made available by or on behalf of the Company under the brand “Fochant”.
“Policies” means the Company’s Privacy Notice (Schedule B), Returns and Refund Policy, Acceptable Use Policy, Prohibited and Restricted Products Policy, Brand Guidelines, fee and payout policies and any other policy or guideline published on the Platform or notified to you.
“Products” means the goods listed, offered or supplied through the Platform.
“Programme” means the “Smile with Fochant” reseller programme operated by the Company.
“Programme Benefits” means any tier discount, rebate, cashback, bonus, gift, reward, credit or other benefit the Company may offer under the Programme.
“Reseller” means the person, firm or company that registers an Account under this Agreement, and “you” and “your” have the same meaning.
“Reseller Order” means an order for Products placed by you through the Platform for your own purchase and onward sale.
“Reseller Price” means the price at which the Company offers Products to resellers, as shown on the Platform at the time of the Reseller Order.
“Rs.” means Sri Lankan Rupees, the lawful currency of Sri Lanka.
“Special Commercial Terms” means the tier, pricing, credit, discount and other commercial terms in Schedule A or notified to you in writing or on the Platform.
“Tier” means the Programme level assigned to you by the Company from time to time.
1.1In this Agreement, headings are for convenience only; the singular includes the plural and vice versa; “including” means “including without limitation”; and a reference to a statute includes that statute as amended, re-enacted or replaced and any subsidiary legislation under it.
1.2Where this Agreement states that the Company may act “in its sole discretion”, the Company may act as it sees fit, without giving reasons, and without liability to you, except where Applicable Law requires otherwise.
1.3If there is any conflict between documents forming this Agreement, the following order of priority applies (highest first): (a) Applicable Law; (b) the Special Commercial Terms and Schedule A; (c) these Terms and Conditions; (d) the Policies.
1.4Each obligation of the Company in this Agreement is owed to you alone. No other person has any right to enforce any term of this Agreement against the Company.
2. AGREEMENT, ELIGIBILITY AND REGISTRATION
2.1This Agreement is formed when you tick the acceptance box on the Platform and complete registration or log in, or when you first use the Platform after notice of this Agreement, whichever is earlier. You agree that an electronic record of your acceptance is a valid and binding contract under the Electronic Transactions Act, No. 19 of 2006, and that no handwritten signature is required.
2.2You confirm that the Company’s electronic records (including logs of the date, time, IP address, device, user identifier and version of the Agreement accepted) are admissible and, in the absence of manifest error, conclusive evidence of your acceptance and of every transaction and instruction made through your Account.
2.3You may register only if you:
(a)are at least eighteen (18) years of age and have full legal capacity, or, if you are a company, partnership or other entity, are duly incorporated or registered and in good standing;
(b)if acting for an entity, are authorised to bind it, in which case the entity and you personally are bound by this Agreement; and
(c)are not barred from doing business under Applicable Law and are not subject to any sanction, insolvency or regulatory restriction that would affect your performance.
2.4We may accept, reject, condition, suspend or cancel any registration in our sole discretion and need not give reasons. Acceptance of your registration does not oblige us to supply any Product, service, volume, price or level of support.
2.5You must provide complete, accurate and current information and documents when we ask for them, including your National Identity Card or passport, business registration, tax registration, proof of address and proof of bank account in your own name. You must tell us of any change within seven (7) days. We may verify your information with third parties, including banks, payment service providers, credit and fraud-prevention agencies and public registries, and you consent to that verification.
2.6You may hold one Account only. You must not transfer, sell, share or lend your Account. You are responsible for keeping your login credentials secure and for all activity under your Account, whether or not authorised by you. Any instruction received through your Account is deemed to be your instruction and we may rely on it. You must notify us immediately of any suspected unauthorised access.
2.7You are solely responsible for your own tax affairs, including income tax and VAT registration, returns, invoicing and payment. Unless a different amount is stated, all amounts payable to the Company are exclusive of VAT and other taxes, which you must pay in addition. We may withhold or deduct any tax that Applicable Law requires us to withhold from amounts payable to you.
3. THE RESELLER PROGRAMME
3.1Subject to this Agreement, the Company appoints you, on a non-exclusive, non-transferable and revocable basis, as an independent reseller of Products through the Authorised Channels. You buy Products from the Company as principal and sell them to your own customers in your own name, at your own risk and at prices you determine (subject to the clause on pricing and marketing).
3.2You are not an agent, employee, partner, joint venturer or franchisee of the Company. You have no authority to bind the Company, to give any warranty on its behalf or to incur any liability for it.
3.3The Programme is non-exclusive. The Company may sell Products directly or through any other person, channel, territory, price or programme and may add, withdraw or change Products, prices, Tiers and Authorised Channels at any time, without liability to you. Nothing in this Agreement guarantees any volume, income, margin, stock, territory or continuity of supply.
3.4Acceptance into the Programme and your Tier are in the Company’s sole discretion. The Company may upgrade, downgrade, suspend or remove you from a Tier at any time, including if you fail to meet any purchase target, return-rate limit or compliance requirement.
4. PURCHASES, PRICES AND TITLE
4.1Each Reseller Order is an offer by you to buy the Products at the Reseller Price. The Company may accept or reject it in whole or in part, in its sole discretion, and a binding contract of sale arises only when the Company confirms or dispatches the order. Minimum order values and quantities in Schedule A apply.
4.2Reseller Prices, minimum orders, Tier discounts and delivery charges may change at any time; the price on the Platform at the time the Company accepts the Reseller Order applies. The Company may correct any pricing or listing error and cancel any affected order, refunding amounts paid as your sole remedy.
4.3You must pay for Reseller Orders in full in cleared funds at checkout, unless the Company has agreed credit terms in writing. Any credit limit may be reduced or withdrawn at any time, and the Company may require a personal guarantee, security cheque or other security from you or your directors before extending credit.
4.4Delivery dates are estimates only. Risk passes to you on handover to the Courier or on collection. Title to the Products passes to you only when the Company has received payment of all sums due for them in full (and for credit sales, for all sums then due from you). Until then you hold unpaid Products as bailee, keep them identifiable, insured and separate, and must allow the Company to inspect and, on any default, to enter your premises and recover them.
4.5You must inspect each delivery on receipt and notify the Company through the Platform within [48 hours] of any shortage, damage, defect or wrong item, with photographs. Subject to that, and to the Returns and Refund Policy, the Company will, at its option, replace, credit or refund the affected Product. This is your sole and exclusive remedy for defects and non-conformity as against the Company.
4.6Products are not returnable for change of mind, slow sales, over-ordering, seasonal or demand changes, price reductions or any other commercial reason. The Company has no obligation to repurchase or exchange unsold stock, but may do so in its sole discretion on terms it specifies.
5. PRICING, CHANNELS AND MARKETING
5.1You may sell Products only through the Authorised Channels, to end customers, in Sri Lanka (unless Schedule A permits otherwise). You must not, without the Company’s prior written consent, sell Products on third-party online marketplaces, to other resellers or wholesalers, or outside Sri Lanka.
5.2The Company may publish recommended retail prices and minimum advertised prices. You must not advertise or offer Products below the published minimum advertised price. Subject to that, you may set your own selling prices.
5.3You are solely responsible for all your advertisements, social media posts, listings and customer communications (“Resale Content”). You must ensure that Resale Content:
(a)is accurate, not misleading and consistent with the Company’s product information and Brand Guidelines;
(b)makes no medical, health, therapeutic, income, performance, “guaranteed result” or comparative claim that has not been approved in writing by the Company;
(c)does not state or imply any endorsement by the Company, other than the approved description “Authorised Fochant Reseller”, and only while you remain in good standing;
(d)complies with Applicable Law and the rules of the platform or channel on which it appears; and
(e)is removed promptly at the Company’s request.
5.4Where you receive any benefit, sample, discount or incentive in exchange for promoting Products, you must disclose it clearly as required by Applicable Law and the Company’s Brand Guidelines.
5.5You must not hold yourself out as the manufacturer or importer of the Products, relabel or repackage them in a way that conceals their origin, or alter, remove or obscure any batch number, expiry date, warning, label or trade mark.
5.6You must store and handle Products in accordance with the instructions on them and in conditions that preserve their quality and safety. You must not sell expired, damaged, tampered or recalled Products.
6. PROGRAMME BENEFITS AND PROHIBITION OF PYRAMID SCHEMES
6.1Programme Benefits are offered entirely at the Company’s discretion, are not part of your remuneration and are not a right or entitlement. The Company may withdraw, vary, suspend or end any Programme Benefit, Tier, campaign or reward at any time, with or without notice, and may impose conditions, expiry dates and caps. Unredeemed Programme Benefits have no cash value, are non-transferable and lapse on termination or suspension.
6.2No pyramid or recruitment scheme. The Programme is a product-resale programme only. You acknowledge that: (a) no joining fee, subscription or other payment is required to participate other than the purchase of Products you intend to resell and any administrative charge stated in Schedule A; (b) no commission, bonus, reward, Tier advancement or other Programme Benefit is payable for recruiting, introducing or sponsoring any other person; and (c) all Programme Benefits depend solely on genuine sales of Products to end customers and not on the number of participants or on any payment made by participants.
6.3You must not, in connection with the Programme or the Company, initiate, offer, promote, advertise, conduct, finance, manage or direct any scheme in which a participant is required to pay money or monetary value and the benefits earned depend largely on an increase in the number of participants or in the contributions made by participants, which is prohibited by section 83C of the Banking Act, No. 30 of 1988 (as amended). You must not recruit or induce any person to join the Programme by reference to earnings from recruitment, or make any claim about income, “passive income”, “downline” or similar.
6.4The Company may immediately terminate this Agreement and report to the competent authorities if it suspects a breach of the preceding clause. You indemnify the Company against all loss, fines, penalties and costs arising from any such breach by you.
6.5You must not treat the Company as a deposit-taker or bank. No money you pay to the Company other than as the price of Products or an expressly stated fee is held as a deposit, investment or loan, and the Company pays no interest on any balance or credit.
7. PAYMENTS, CREDITS AND SETTLEMENTS
7.1All Fees and other sums due to the Company must be paid in Rupees in cleared funds, without set-off, counterclaim, deduction or withholding (except as required by law), by the due date shown on the Platform or invoice. Payment gateway, bank, remittance and conversion charges are borne by you.
7.2Late payments carry interest at the rate of [2]% per month (or the maximum rate permitted by law if lower) from the due date until payment in full, together with all costs of recovery, including legal fees on an attorney-and-client basis.
7.3The Company may at any time, without notice, set off any amount you owe to the Company or its Affiliates (under this or any other agreement) against any amount payable by the Company to you, and may withhold or reserve any payment, in whole or in part, for as long as reasonably necessary where the Company suspects fraud, breach, chargeback, return, regulatory risk or insolvency, or while any investigation or dispute is pending.
7.4You must raise any query or dispute about a statement, invoice, settlement or deduction in writing within seven (7) days of it becoming available on your Account. After that period the statement is final and binding on you, save for manifest error.
7.5Any balance, credit or wallet value shown in your Account is a ledger entry for administrative purposes only. It is not a deposit, does not earn interest, is not held on trust for you (unless the Company expressly agrees otherwise in writing) and is not a bank account. The Company is not a licensed bank or finance company and does not accept deposits. Payments are processed through licensed banks and payment service providers, whose terms also apply, and the Company is not liable for their acts or omissions.
7.6The Company may refuse, delay, reverse or freeze any transaction, and may report to the competent authority, where it suspects money laundering, terrorist financing, fraud, sanctions evasion or any other unlawful activity, and need not tell you that it has done so where law prohibits or discourages disclosure.
7.7The Company may change any Fee, commission rate, payout schedule, minimum balance or charge by publishing the change on the Platform or notifying you electronically, with effect from the date stated in the notice (which, unless the change is required by law or is urgent, will be at least seven (7) days after publication). Your continued use of the Platform after that date is acceptance of the change.
7.8Commission or cashback. Where the Programme includes cashback, commission or rebates on your own purchases or on verified sales, these are calculated and credited only after the relevant return window has ended and all related sums have been received in full, and may be adjusted or reversed for returns, cancellations, fraud, breach or error.
7.9Recovery. The Company may recover from you any Programme Benefit or discount that was credited in error, on account of an order that was later cancelled, returned or reversed, or in breach of this Agreement.
8. CONSUMER PROTECTION COMPLIANCE
8.1You acknowledge that, in selling Products online or through any information network, you are an “e-commerce entity” within the meaning of Direction No. 91 of the Consumer Affairs Authority and must comply with that Direction and the Consumer Affairs Authority Act, No. 9 of 2003, including the standards summarised in Schedule D, in all dealings with your customers.
8.2As between you and the Company, you are solely responsible to your customers for the Products you sell, including price display, order summaries, receipts, delivery, returns, refunds, cooling-off where appropriate, implied warranties and product safety.
8.3You must keep full records of your sales, marketing and complaints for at least [six (6)] years, cooperate with any inquiry or inspection by the Consumer Affairs Authority or the Company, and, at the Company’s request, provide evidence of your compliance within [3] days.
8.4You must never post, procure, incentivise or manipulate false ratings or reviews and must disclose any incentive for reviews.
9. BRAND, INTELLECTUAL PROPERTY AND NON-CIRCUMVENTION
9.1As between the parties, the Company and its licensors own all Intellectual Property Rights in the Platform, the “Fochant” and “Smile with Fochant” names and logos, all product data, images and descriptions created or commissioned by the Company, all software, data compilations, analytics and reports, and all improvements to any of them (together, “Company IP”). Nothing in this Agreement transfers any Company IP to you.
9.2You may use Company IP only as expressly permitted by this Agreement and the Brand Guidelines, only during the term, and only for the purpose of performing this Agreement. You must not register or use any trade mark, business name, domain name, social media handle or keyword that includes or is confusingly similar to “Fochant”, and must immediately transfer to us at our request any such registration you make.
9.3You grant the Company and its Affiliates a worldwide, non-exclusive, perpetual (as to material already published), irrevocable, royalty-free, sublicensable licence to host, reproduce, adapt, display, distribute and otherwise use all text, images, video, data, reviews, listings and other content you upload or provide (“Your Content”) to operate, secure, improve, market and promote the Platform and the Company’s business. You warrant that you own or have all rights necessary to grant this licence and that Your Content does not infringe any third party’s rights or Applicable Law.
9.4Any feedback, suggestion or idea you give about the Platform may be used by the Company without restriction or payment, and you assign to the Company all rights in it.
9.5You must not contact, solicit or deal with any manufacturer, supplier or merchant identified to you through the Platform in order to buy the same or similar Products otherwise than through the Company, during this Agreement and for twelve (12) months afterwards. Breach entitles the Company to claim, as liquidated damages and not as a penalty, the greater of [Rs. 250,000] and its lost margin, without prejudice to injunctive relief.
9.6You must not register or operate any website, shop, domain, social media page or app that uses “Fochant” or a similar name or that could be confused with the Company’s Platform.
10. DATA PROTECTION AND PRIVACY
10.1Our Privacy Notice. The Company’s collection and use of your personal data is explained in the Privacy Notice at Schedule B. By accepting this Agreement you confirm that you have read it. Where the Privacy Notice or Applicable Law requires your consent to any processing, you give that consent by ticking the acceptance box, and you may withdraw it as described in the Privacy Notice.
10.2Roles. You are an independent controller of the personal data of your own customers. The Company does not process your customers’ data on your behalf, unless you and the Company agree otherwise in writing, and you must not share your customers’ data with the Company except as necessary for a specific order or complaint. The Company is an independent controller of the personal data it collects from you and about your Account and transactions, as explained in the Privacy Notice.
10.3You must not send marketing or other messages to individuals identified through the Platform other than your own customers, and must not use any data obtained through the Platform to contact, profile or solicit end customers of the Company or of other resellers.
10.4Whenever you collect, receive or process personal data of Customers, staff, suppliers or others through or in connection with the Platform, you must:
(a)ensure that you have a lawful basis under Schedule I of the PDPA and give every data subject the information required by Schedule V of the PDPA (including a clear privacy statement at the point of collection, as Direction No. 91 also requires);
(b)process that personal data only for specified, explicit and legitimate purposes, keep it accurate and proportionate, and retain it no longer than necessary;
(c)protect it with appropriate technical and organisational measures (including access control and encryption where appropriate) and not disclose it to any person except as lawfully required for the order concerned;
(d)not use personal data obtained through the Platform to send unsolicited commercial messages, and honour opt-out requests in line with the PDPA and the Company’s procedures;
(e)notify the Company in writing without undue delay and in any event within twenty-four (24) hours of becoming aware of any personal data breach affecting data connected with the Platform, and cooperate fully with the Company and any regulator;
(f)not transfer such personal data outside Sri Lanka except in compliance with section 26 of the PDPA; and
(g)promptly assist the Company in responding to any request, complaint, inquiry or inspection by a data subject, the Data Protection Authority or another authority.
10.5The Company may use, disclose and retain anonymised, pseudonymised or aggregated data derived from the Platform (including transaction, pricing, product, performance and market data) for any lawful purpose, including analytics, product development, benchmarking and commercial purposes. Such data is not personal data and is owned by the Company.
10.6The Company may disclose information about you and your activity to courts, law-enforcement bodies, regulators, tax authorities, banks, payment service providers, couriers, insurers, professional advisers and potential acquirers or financiers of the Company, where it considers disclosure necessary or appropriate to comply with law, to protect its rights, to prevent fraud or abuse, or to complete a business transaction.
10.7You indemnify the Company against all losses, penalties, regulatory fines, compensation and costs arising from your breach of this clause or of the PDPA.
11. CONFIDENTIALITY
11.1You must keep all Confidential Information strictly confidential, use it only to perform this Agreement, and disclose it only to your employees and advisers who need to know it and are bound by equivalent obligations. You are responsible for any breach by them.
11.2This clause does not apply to information that is or becomes public other than through your breach, or that you are required to disclose by law or court order (in which case you must, where lawful, give the Company prior written notice and disclose only what is required).
11.3The obligations in this clause continue for five (5) years after termination of this Agreement and, for trade secrets and personal data, for as long as the information remains confidential.
12. YOUR WARRANTIES AND UNDERTAKINGS
12.1You represent, warrant and undertake on a continuing basis that:
(a)all information you give the Company is true, accurate and complete;
(b)you hold and will maintain every licence, registration and permission needed to sell the Products in the Authorised Channels;
(c)you will comply with Applicable Law and all reasonable instructions of the Company relating to the Programme and the Brand Guidelines;
(d)you will not use the Programme for money laundering, fraud, tax evasion or any unlawful purpose; and
(e)you will pay all taxes on your sales.
12.2The Company may at any time audit, on reasonable notice, your sales records, advertising and storage of Products (including by test purchases and mystery shopping) to verify compliance with this Agreement, and you must cooperate.
13. DISCLAIMERS AND LIMITATION OF LIABILITY
13.1To the fullest extent permitted by Applicable Law, the Company, its Affiliates, directors, officers, employees and agents make no warranty or representation, express or implied, statutory or otherwise, to you regarding the Platform, the Products, any third-party goods or services, expected sales, profits, traffic, ranking, stock availability, delivery times or results, and all such warranties and conditions (including as to satisfactory quality, fitness for purpose and non-infringement) are excluded as against you.
13.2Nothing in this Agreement excludes or limits liability that cannot lawfully be excluded or limited, including liability for death or personal injury caused by negligence, for fraud, or for any right of a consumer that cannot be waived under the Consumer Affairs Authority Act, No. 9 of 2003. To the extent a clause below would be unenforceable in full, it applies to the maximum extent that is enforceable.
13.3Subject to the preceding clause, the Company and its Affiliates will not be liable to you, whether in contract, delict (tort), negligence, breach of statutory duty, restitution or otherwise, for any loss of profit, revenue, business, goodwill, anticipated savings, data or opportunity, or for any indirect, special, incidental, consequential, exemplary or punitive loss, even if foreseeable or if advised of the possibility.
13.4Subject to the preceding clauses, the total aggregate liability of the Company and its Affiliates to you arising out of or in connection with this Agreement in any period of twelve (12) months shall not exceed the lesser of (a) the total Fees actually received by the Company from you in the three (3) months immediately preceding the event first giving rise to the claim and (b) Rs. [100,000].
13.5Any claim by you against the Company must be notified in writing within ninety (90) days of the date you became aware of the facts giving rise to it and, to the extent permitted by law, commenced within one (1) year of that date. Claims not so notified or commenced are waived.
13.6You acknowledge that the Fees and the allocation of risk in this Agreement reflect the limited exclusions and caps above, and that you have had the opportunity to obtain independent legal advice.
14. INDEMNITY
14.1You shall indemnify, defend and hold harmless the Company, its Affiliates and their respective directors, officers, employees, agents and licensors (the “Indemnified Persons”) on demand against all claims, demands, proceedings, losses, damages, liabilities, regulatory fines and penalties, costs and expenses (including legal fees on an attorney-and-client basis) arising out of or in connection with:
(a)your breach of this Agreement, any Policy or Applicable Law;
(b)any act or omission of you, your employees, agents, contractors or sub-contractors;
(c)Your Content, your listings, advertising, representations or sales practices, and any claim by a Customer or third party relating to them;
(d)any infringement or alleged infringement of Intellectual Property Rights by you or Your Content;
(e)any investigation, enforcement action or claim by the Consumer Affairs Authority, the Data Protection Authority, a tax authority or any other regulator that relates to your activities;
(f)any tax, duty, levy or penalty for which you are liable; and
(g)any claim by your customers or third parties relating to Products you sold, advertised, stored, repackaged or handled, except to the extent caused by a manufacturing defect for which the Company is proven to be responsible; and
(h)any breach of the clause on Programme Benefits and Prohibition of Pyramid Schemes;
(i)any fraud, wilful misconduct or negligence by you.
14.2The Company may control the defence and settlement of any claim covered by this indemnity at your cost, and you must give all reasonable assistance. This indemnity survives termination of this Agreement.
15. SUSPENSION AND TERMINATION
15.1This Agreement starts on the date you accept it and continues until terminated in accordance with this clause.
15.2The Company may terminate this Agreement or suspend, restrict or close your Account (or any part of the Platform or any Product, tier or privilege) at any time (a) for any reason or no reason on seven (7) days’ written or electronic notice, or (b) immediately and without notice if you breach this Agreement or any Policy, if we reasonably suspect fraud, illegality, abuse, harm to the Company’s brand or customers, or regulatory risk, if you become insolvent, or if we are required to do so by law or an authority.
15.3You may terminate this Agreement by giving the Company thirty (30) days’ written notice through the Platform’s designated channel, provided that you have first fulfilled or cancelled all pending orders and paid all amounts due.
15.4On suspension or termination for any reason:
(a)your licence to use the Platform and Company IP ends immediately, and you must stop all use of the Fochant name and marks;
(b)all amounts owing to the Company become immediately due and payable;
(c)the Company may withhold and set off against any amounts it owes you for up to one hundred and eighty (180) days (or such longer period as is needed to cover returns, chargebacks, claims and regulatory inquiries) before releasing any balance to you;
(d)you must return or destroy all Confidential Information and Company IP in your possession;
(e)all Programme Benefits, Tier privileges, credit terms and pending rewards cease immediately, and unredeemed benefits lapse;
(f)you must cease holding yourself out as an Authorised Fochant Reseller and remove all Company content from your channels within seven (7) days;
(g)the Company may, at its sole option, repurchase any unsold, unopened and saleable Products at the lower of your purchase price and the then Reseller Price, less a restocking and handling charge of [25]% and all amounts you owe, but is under no obligation to do so; and
(h)the Company may retain your data as set out in the Privacy Notice.
15.5Termination does not affect any right or liability that accrued before termination. The clauses on interpretation, payments, intellectual property, data protection, confidentiality, disclaimers, liability, indemnity, non-circumvention, notices, governing law and disputes, and any other clause intended by its nature to survive, continue after termination.
16. FORCE MAJEURE
16.1The Company is not liable for any failure or delay in performing its obligations caused by any event beyond its reasonable control, including acts of God, flood, fire, epidemic or pandemic, war, civil unrest, strikes or industrial action, curfew, fuel or power shortage, import or exchange-control restrictions, changes in law or government action, failure of banks, payment gateways, couriers, telecommunications, internet or cloud providers, cyber-attack, or supplier default (each a “Force Majeure Event”). The Company may suspend affected obligations for the duration of the event and shall not be liable for any resulting loss.
16.2A Force Majeure Event does not excuse your obligation to pay money owed to the Company.
17. NOTICES AND ELECTRONIC COMMUNICATIONS
17.1You consent to receive all notices, statements, policies and other communications from the Company electronically, by posting on the Platform, in-app notification, e-mail, SMS or messaging application to the contact details held on your Account. A notice is deemed received when posted or sent (or, if sent by post, three (3) working days after posting). You must keep your contact details current.
17.2Notices to the Company must be sent to [[email protected]] and to the Company’s registered office, and take effect on actual receipt. Operational requests must be made through the Platform’s designated channels.
18. GENERAL
18.1Variation. The Company may amend this Agreement and any Policy at any time by publishing the revised version on the Platform or notifying you electronically. Unless a later date is stated or the change is required by law (in which case it applies immediately), amendments take effect seven (7) days after publication. Your continued use of the Platform after that date is acceptance of the amended terms. If you do not agree, your sole remedy is to stop using the Platform and terminate under the termination clause.
18.2Assignment and sub-contracting. The Company may assign, novate, transfer, charge or sub-contract any or all of its rights and obligations to any Affiliate or successor without your consent. You may not assign, transfer or sub-contract any right or obligation without the Company’s prior written consent.
18.3Entire agreement. This Agreement is the entire agreement between the parties on its subject matter and supersedes all prior discussions, representations and understandings. You acknowledge that you have not relied on any statement not set out in this Agreement.
18.4Severance. If any provision is held invalid or unenforceable, it shall be modified to the minimum extent necessary to make it enforceable, or, if that is not possible, severed, and the remaining provisions continue in full force.
18.5No waiver. A failure or delay by the Company in exercising any right is not a waiver of it. A waiver is effective only if in writing and signed or sent by the Company.
18.6Relationship. Nothing in this Agreement creates a partnership, joint venture, franchise, employment, agency (except as expressly stated) or fiduciary relationship between the parties. You have no authority to bind the Company or to make any representation on its behalf.
18.7Rights cumulative. The Company’s rights and remedies are in addition to any other rights and remedies available at law or in equity, including injunctive relief.
18.8Language. This Agreement is made in English. If it is translated into Sinhala or Tamil, the English text prevails to the extent permitted by law.
18.9Third-party rights. Subject to the clause on the Indemnified Persons, no person other than the parties may enforce this Agreement.
19. GOVERNING LAW AND DISPUTE RESOLUTION
19.1This Agreement and any dispute or claim arising out of or in connection with it (including non-contractual disputes) are governed by the laws of the Democratic Socialist Republic of Sri Lanka.
19.2The parties shall first try in good faith to resolve any dispute by written notice and discussion between senior representatives for fourteen (14) days. This does not prevent the Company from seeking urgent relief at any time.
19.3If the dispute is not resolved, the Company may, at its sole option, either (a) refer it to arbitration in Colombo before a sole arbitrator under the Arbitration Act, No. 11 of 1995, in English, the award being final and binding; or (b) submit it to the exclusive jurisdiction of the courts of Sri Lanka at Colombo. You may bring proceedings only in the courts of Sri Lanka at Colombo unless the Company has elected arbitration.
19.4Notwithstanding the above, the Company may at any time apply to any court of competent jurisdiction (in Sri Lanka or elsewhere) for injunctive relief or to protect or enforce its Intellectual Property Rights, Confidential Information or rights to payment.
19.5To the extent permitted by law, disputes must be brought by you on an individual basis only and not as part of a class, collective or representative proceeding.
20. ACCEPTANCE AND ELECTRONIC EXECUTION
20.1By ticking the box below and proceeding, you confirm and agree that: (a) you have read, understood and accept this Agreement, including the Privacy Notice (Schedule B) and the Policies; (b) you have had a reasonable opportunity to read it, to ask questions, and to obtain independent legal advice; (c) you are entering into this Agreement in the course of your business or trade and not as a consumer; and (d) the information you give is true and complete.
20.2The Company will keep a record of your acceptance, including the version of this Agreement accepted. Each time we publish a materially updated version, we may require you to accept it afresh before you can continue to use the Platform.
SCHEDULE A
COMMERCIAL TERMS AND TIERS
The following terms apply unless the Company notifies you of different terms. Items in brackets are to be completed by the Company before publication.
| Item | Term |
|---|---|
| Registration charge | [Nil / Rs. ____ administrative charge only, not linked to any recruitment or Tier] |
| Reseller Price and Tier discounts | [Tier 1: __%; Tier 2: __%; Tier 3: __% off the published retail price], determined by purchase volume over [period]. |
| Minimum order | [Rs. ____ per order / ____ units] |
| Authorised Channels | [Own social media pages; own physical shop; WhatsApp; own website]. Third-party marketplaces: not permitted without written consent. |
| Territory | [Sri Lanka] |
| Minimum advertised price | As published on the Platform. |
| Credit terms | None unless agreed in writing. Any credit limit: [Rs. ____]. |
| Defect / shortage notification period | [48 hours from delivery] |
| Restocking and handling charge on repurchase | [25]% (repurchase at the Company’s option only). |
| Cashback / rewards | [Describe: rate, qualifying sales, crediting date, expiry] — discretionary and subject to the clause on Programme Benefits. |
| Non-circumvention liquidated damages | Greater of [Rs. 250,000] and the Company’s lost margin. |
| Liability cap | Lesser of three months’ Fees and [Rs. 100,000]. |
SCHEDULE B
PRIVACY NOTICE
This Privacy Notice explains what personal data the Company collects about you and about individuals connected with your business, how it is used, who receives it and how long it is kept. It is the privacy statement required by Schedule V of the Personal Data Protection Act, No. 9 of 2022 (“PDPA”) and by Direction No. 91 of the Consumer Affairs Authority. It forms part of the Agreement.
1. WHO IS RESPONSIBLE FOR YOUR DATA
1.1Controller: [COMPANY LEGAL NAME] (Private) Limited (“Fochant”), [registered address]. Contact: [[email protected]], [telephone].
1.2Data Protection Officer: [name / designation, if appointed under section 20 of the PDPA], reachable at [[email protected]].
1.3Where you pass Customer personal data to us for order fulfilment, you are the controller and we act as your processor for that limited purpose, as explained in the Agreement. Where we use data for our own purposes (for example fraud prevention, accounting, legal compliance and Platform analytics), we are an independent controller.
2. WHAT INFORMATION WE COLLECT
| Category | Examples | How we get it |
|---|---|---|
| Identity and contact | Name, NIC or passport number and copy, date of birth, address, telephone, e-mail, business name and registration, tax and VAT numbers, social media handles. | From you at registration and in your profile; from verification checks. |
| Financial and payout | Bank account details, payment tokens, credit limits, credits, cashback and rewards, refunds and deductions, tax information. | From you; from banks and payment service providers. |
| Order and sales data | Reseller Orders, delivery addresses, purchase history, volumes, returns, Tier information, sales evidence you provide for audits. | From you and our systems. |
| Marketing and channel data | Links and content of your shops, pages and advertisements; compliance checks and test-purchase results. | From you; from public sources. |
| Account and usage data | Login details, IP address, device and browser data, pages visited, activity logs, support chats. | Automatically, through cookies and similar technologies. |
| Compliance and risk | Fraud flags, complaint history, sanctions and regulatory screening, disputes. | Generated by us; from third-party agencies. |
2.1We do not intentionally collect special categories of personal data (such as health, religion, biometrics or data relating to children). Please do not upload them. If you upload copies of identity documents containing photographs, you consent to our processing them for verification only.
3. HOW AND WHY WE USE IT
| Purpose | What we do | Legal basis (PDPA Schedule I) |
|---|---|---|
| Registration and verification | Create and verify your Account, assess eligibility and Tier, prevent duplicate or fraudulent accounts. | Contract; legitimate interests (fraud prevention). |
| Running the Programme | Process Reseller Orders and deliveries, manage credit, calculate Programme Benefits, provide statements and support. | Contract; legitimate interests. |
| Payments and accounting | Collect payments, calculate Fees, set off and recover amounts, keep records, report to tax authorities. | Legal obligation; contract. |
| Brand and compliance monitoring | Check Resale Content, prices and channels against the Brand Guidelines and Applicable Law, including the prohibition on pyramid schemes. | Legitimate interests; legal obligation. |
| Security, fraud and legal claims | Detect fraud, abuse and money laundering; enforce our terms; respond to authorities; establish or defend claims. | Legal obligation; legitimate interests. |
| Improving the Programme | Analytics, benchmarking, forecasting and product development. | Legitimate interests. |
| Marketing | Tell you about offers, products, Tiers and events. | Consent, or as permitted by law, with opt-out. |
3.1We do not carry out solely automated decision-making that has an irreversible and continuous impact on your rights. We do use automated checks (for example fraud scoring, duplicate-account detection and order risk rules) to flag accounts and transactions for human review. If you are affected by such a decision you may ask us to review it.
4. WHO RECEIVES YOUR DATA
| Recipient | Why | Notes |
|---|---|---|
| Couriers and logistics partners | To deliver Reseller Orders. | Receive your name, address and phone. |
| Banks and payment service providers | To process payments, refunds and payouts, and detect fraud. | Licensed institutions with their own legal duties. |
| Technology providers | Hosting, e-mail, SMS, analytics, customer-support and CRM tools. | Processors bound by contract; may be located abroad. |
| Suppliers and manufacturers | For warranty, recall, quality and authenticity matters. | Limited to what is necessary. |
| Professional advisers, auditors and insurers | Legal, audit, tax, insurance and debt recovery. | Subject to confidentiality. |
| Authorities | Courts, police, the Consumer Affairs Authority, the Data Protection Authority, tax authorities, the Central Bank of Sri Lanka and the Financial Intelligence Unit, where required or permitted by law. | Disclosure limited to what is required. |
| Corporate transaction parties | Any prospective buyer, investor or successor of our business. | Under confidentiality. |
4.1We do not sell your personal data. We require service providers to protect it and to use it only on our instructions. We may also disclose data where required by law or court order, to enforce our rights, to prevent fraud or harm, or in connection with a merger, financing or sale of our business.
5. HOW LONG WE KEEP IT
| Data | Retention period | Reason |
|---|---|---|
| Account and identity (KYC) records | For the life of the Account and [six (6)] years after closure. | Legal and regulatory record-keeping; claims. |
| Orders, payments, credits and tax records | [Six (6)] years after the end of the relevant financial year. | Tax, accounting and audit requirements. |
| Compliance, audit and brand-monitoring records | [Three (3)] years after the end of the Agreement. | Enforcement of Agreement; defence of claims. |
| Usage logs, IP and device data | [Twelve (12)] to [twenty-four (24)] months. | Security and fraud detection. |
| Support communications | [Three (3)] years from closure of the case. | Quality, disputes. |
| Marketing preferences and suppression list | Until you opt out, then a minimal suppression record is kept. | To honour your choice. |
| Data subject to a claim or investigation | Until the matter ends and the limitation period expires. | Establishment, exercise or defence of legal claims. |
| Backups | Up to [ninety (90)] days after deletion from live systems. | Resilience and disaster recovery. |
5.1When the retention period ends we erase or anonymise the data, unless we are required or permitted by law to keep it longer (for example for a pending claim, investigation or regulatory request), in which case we keep only what is necessary and only for as long as necessary.
6. TRANSFERS OUTSIDE SRI LANKA
6.1Some of our service providers (for example cloud hosting, messaging, analytics and e-mail platforms) may process data outside Sri Lanka. We transfer personal data abroad only (a) to a country that Sri Lanka has prescribed as adequate, (b) where we have put binding and enforceable safeguards in place as the Data Protection Authority requires, or (c) in the other circumstances permitted by section 26 of the PDPA, including where you have explicitly consented after being informed of the risks, or where the transfer is necessary to perform your contract with us. By accepting the Agreement you give that consent to the extent consent is the applicable basis.
7. SECURITY
7.1We use appropriate technical and organisational measures, including access controls, encryption in transit, pseudonymisation where suitable, staff confidentiality undertakings and incident procedures, to protect personal data against unauthorised or unlawful processing and against loss, destruction or damage. No system is completely secure; you must also protect your own credentials and devices. We will notify the Data Protection Authority and affected individuals of personal data breaches as the PDPA and its rules require.
8. YOUR RIGHTS
8.1Subject to the PDPA and its rules, you may by written request (which may be sent electronically to the contact above):
(a)ask whether we process your personal data and obtain a copy and the information listed in Schedule V of the PDPA;
(b)withdraw consent at any time (this does not affect processing already carried out), or ask us to stop processing that is based on public interest or legitimate interests;
(c)ask us to correct inaccurate or incomplete data;
(d)ask us to erase data in the circumstances the PDPA provides; and
(e)ask for review of a decision based solely on automated processing.
8.2We will respond in writing within twenty-one (21) working days of your request. We may refuse a request on the grounds the PDPA allows (including legal obligations, national security, the rights of others, the prevention of crime, or where we cannot verify your identity), in which case we will give reasons and tell you how to appeal. We may ask for information to confirm identity and may charge any fee prescribed by regulations.
8.3If you are dissatisfied with our response, you may appeal to the Data Protection Authority of Sri Lanka in the form and manner prescribed, and you may complain to the Authority at any time.
8.4Withdrawing consent or erasing data that we need to run your Account may mean we can no longer provide the Platform or services to you, and does not release you from any obligation under the Agreement. We may keep data that we must keep by law or need to establish, exercise or defend legal claims.
9. MARKETING MESSAGES
9.1We send operational messages (orders, payouts, security, policy changes) as part of the service. We send promotional messages only where you have consented or as the PDPA permits. Every promotional message includes a free way to opt out, and you can also opt out in your Account settings or by writing to us. Opting out of marketing does not stop operational messages.
10. CHANGES TO THIS NOTICE
10.1We may update this Privacy Notice from time to time by publishing the new version on the Platform and, where the change is material, notifying you. The version in force is the one published on the Platform. Continued use of the Platform after notification means you accept the update, without affecting your statutory rights.
SCHEDULE C
PROHIBITED AND RESTRICTED PRODUCTS
The Company may amend this list at any time. If an item is not on the list but is unlawful, unsafe, or damaging to the Company’s brand or customers, it is nevertheless prohibited.
Part 1 — Prohibited (never to be listed, offered, sold or promoted)
0.1The following are strictly prohibited:
(a)counterfeit, replica, pirated, stolen or grey-market goods, and goods infringing any third party’s Intellectual Property Rights;
(b)narcotic, psychotropic or other controlled substances, and drug paraphernalia;
(c)firearms, ammunition, explosives, weapons and any item regulated as dangerous or offensive;
(d)adult, obscene or indecent material, and anything that exploits or endangers children;
(e)human or animal parts, protected wildlife, timber or flora and any product of endangered species;
(f)tobacco, e-cigarettes and vaping products, alcohol, and gambling or lottery items, unless the Company expressly approves in writing and the seller holds every required licence;
(g)unregistered or unapproved medicines, medical devices, cosmetics, supplements and foods, or any product making unsubstantiated medical, curative or weight-loss claims;
(h)goods that do not comply with mandatory Sri Lankan standards, labelling, import and safety requirements, or that have been recalled; and
(i)digital items, vouchers, accounts or services that facilitate fraud, hacking, surveillance or any unlawful activity.
Part 2 — Restricted (permitted only with prior written approval and proof of licences)
0.2Restricted categories include:
(a)food, beverages and nutrition products (Food Act, No. 26 of 1980, and related regulations);
(b)cosmetics, personal-care, medical and wellness products (Cosmetics, Devices and Drugs Act, No. 27 of 1980);
(c)electrical and electronic goods that require standards or telecommunications approval;
(d)baby, child and safety-critical products, and batteries or hazardous materials; and
(e)branded goods for which the seller cannot prove authenticity or authorised distribution.
SCHEDULE D
CONSUMER PROTECTION COMPLIANCE STANDARDS
This Schedule summarises the conditions that Direction No. 91 (Gazette Extraordinary No. 2332/15 of 17 May 2023), issued by the Chairman of the Consumer Affairs Authority under section 10(1)(b)(ii) of the Consumer Affairs Authority Act, No. 9 of 2003, applies to every e-commerce entity and platform operator marketing and selling goods. It applies to you, as an e-commerce entity, whenever you advertise or sell Products online or through any information network. The summary is for convenience: the Direction itself prevails, and you remain responsible for complying with it in full.
| Stage | Topic | Minimum standard you must meet as Reseller |
|---|---|---|
| Pre-purchase | Fair advertising and marketing | No deceptive, misleading or anti-competitive representation, omission or practice. For special offers or free trials, state eligibility, duration and any additional charges clearly. Key conditions must be easy to see, read and understand. The price charged must equal the price posted. Disclaimers must not be used to counter a false or misleading price claim. |
| Pre-purchase | Unsolicited messages | Give consumers an easy way to choose whether to receive unsolicited commercial e-mail, SMS and similar messages. |
| Pre-purchase | Consumer reviews | Use a fair and transparent review mechanism. Never publish false ratings or reviews, and never hire third parties to post them. Disclose clearly any incentive given for a review. Treat positive and negative reviews equally and never discourage negative reviews. |
| Pre-purchase | Transparency of information | Publish business and product information in a non-misleading way. Provide an accessible way for customers to contact you. |
| Pre-purchase | Collection of data | Send a privacy statement when collecting personal data. Let consumers access, review and edit their profile data. |
| Purchase | Order confirmation | Let the consumer review a summary of the order before confirming it. |
| Purchase | Transparency of transaction | Do not hide or misrepresent terms likely to affect the consumer’s decision; do not use misleading contract terms. Give a clear, full statement of terms, conditions and costs. Let the consumer keep a complete, accurate and durable record of the transaction. Where applicable, issue a receipt showing price and fixed charges; compulsory and optional charges; recurring charges; payment method and renewal or opt-out terms; delivery terms; withdrawal, cancellation, return, exchange, refund, warranty and guarantee conditions; privacy policy; and dispute resolution and redress options. |
| Purchase | Payment terms | Offer easy-to-use payment mechanisms with security measures that match the risks, including unauthorised access, fraud and identity theft. |
| Purchase | Delivery and logistics | Let the consumer review delivery services and pricing before confirming. Use reliable logistics providers. Deliver without unreasonable delay. |
| Purchase | Cooling-off and cancellation | Where appropriate and practicable, offer consumers the opportunity to withdraw from a confirmed transaction. |
| Purchase | Privacy and data protection | No deceptive practices in collecting or using personal data. Collection and use must be lawful, transparent and fair, with consumer choice and reasonable security safeguards. Adopt clear, prominently displayed privacy policies. |
| Post-purchase | Warranty | Goods are sold subject to implied warranties based on ‘fair value for money spent’, including merchantability and fitness for a particular purpose. Goods sold ‘as is’ remain the seller’s responsibility if dangerous and they cause personal injury. |
| Post-purchase | Product safety | Be adequately aware of safety requirements and disclose them to the consumer. Assist customers in resolving safety issues. Maintain a consumer feedback mechanism for goods sold. |
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